In World-Wide,
the family that gets into a car accident in Oklahoma sues everybody.

The
key to the case: Does the test of minimum contacts a one-part test or a
two-part test?

The
two functions of the Shoe test

Justice
West says that the main functions of the Shoe test are:

1.To protect the
defendant against having to litigate in far-off lands

2.To keep the
states’ power in line

These
ideas come right out of Pennoyer.Defendants ought not be subject to unfair
burdens, and state power must be constrained.

The
first function is known as the “convenience” prong of Shoe.The second function is known as the “sovereignty”
prong.

The
“convenience” prong

White
says that the “fair play” test speaks to the convenience of a particular forum.He spells out in detail what he perceives to
be the factors one ought to consider on this prong.He says how we will do “fair play” and “substantive
justice” from now on.

White’s
factors:

1.Burden on the defendant
– burdens on corporate defendants tend to be diluted as compared to burdens on
individual defendants.

2.The state’s
interest – what interests does the forum have in having that litigation in that
state as far as protecting its citizens and corporations?

3.The plaintiff’s
interest – everyone would prefer to sue in their own forum.

4.Interstate
efficiency interest – is this forum better, more efficient, more expedient, or
cheaper than any other forum?[1]It is rare that jurisdiction in a case turns
on efficiency, because it can usually be argued both ways.

5.Interstate
policy interest – this would be a stretch.The Courts of Appeals these days tend to lump this and efficiency
together.

On an exam, know and go
through all five prongs.However, the
big three are the first three, where the defendant’s burden is primary.

We’ll
be seeing these all week.

Note
that these factors have nothing to do with minimum contacts, but rather with “traditional
notions of fair play & substantial justice”.

Does
the court apply these five factors in the case of Seaway and World-Wide?No, and what does that tell us?He takes a lot of time to develop these
factors, yet he doesn’t apply them.What
conclusion do we draw?He implies that “minimum
contacts” is the threshold, and thus if you don’t have contacts, you
never get to fair play.

So
there are two prongs, and two parts.The parts are (1) minimum contacts, and (2) fair play, as detailed by
White.

The
Supreme Court reverses the ruling of the Oklahoma Supreme Court, and thus Oklahoma has no jurisdiction over
the defendants.

Minimum
Contacts in World-Wide

If
this case is not decided on fair play, it must be decided on contacts.What do we look at for contacts?

Is foreseeability the test?NO!White explicitly rejects this
as the test.It’s conceivable that
everything every manufacturer makes could find its way to Oklahoma.

What
about foreseeing being sued in a jurisdiction?You might decide to get insurance.

Remember
to reread your brief before class, especially if it’s been a long time since
you looked at the case.

White
gives us other suggestions.How about “purposeful
availment”?Well, that gives the defendant clear notice that they can get sued in
the state where they solicit business.But Seaway and World-Wide don’t solicit business in Oklahoma and in no way seek the
legal protection of that state.

What
about the “seeks to serve” standard?If
you market in other states, and try to get business there, it’s reasonable to
think it’s possible you can get sued there.

The
court never gives us a clear definition of “minimum contacts”.

So
purposeful availment and the “seeks to serve”
standards apply to minimum contacts, while the five convenience factors above
relate to fair play.

Hypotheticals

Say
we have an Audi dealer in Camden.The dealer advertises in Pennsylvania.Could Pennsylvania have jurisdiction? How much did they advertise and in what
venues?Did they broadcast, and if so,
where?Did they advertise on Pennsylvania
TV?The content of the advertisement
might be important as well.How many
cars did they sell in Philadelphia and how many in New Jersey?

Another
example: consider Seaway.Instead of
just buying the car, you go in to have your brakes done and then you end up in
a wreck in Oklahoma due to those faulty
brakes.Will Oklahoma have jurisdiction in this
case?What distinguishes this case from World-Wide?What if Seaway has notice?What has changed about the contacts if Seaway
is put on notice?That’s not going to
make a difference.There must be more than
notice to create contacts.

Two
forgotten defendants: Audi and VW

Initially,
Audi didn’t object to jurisdiction and VW conceded to jurisdiction after a
short fight.What does White tell us
about jurisdiction over these two parties?

He
says if the defendants introduce their products into the “stream of commerce”
in a jurisdiction, they will be subject to the jurisdiction of that forum.Aren’t Seaway and World-Wide putting products
into the stream of commerce too?What’s
different?

We’ll
pick up here tomorrow.Stream of
commerce segues into Asahi, which we will begin tomorrow.

[1] For
example, what argument could you make that it would be more efficient to have
this issue litigated in Oklahoma
than to have it litigated in New York
or elsewhere?What do we need to prove
at trial?We need to show damages, and
the doctors who can testify will be in Oklahoma,
as will the other driver in the accident.Why would it be more efficient to be in New York
or some other forum?You could look at
more cars there.